Coventry Health Center

National Labor Relations Board - Board Decisions

Sep 14, 2000

332 N.L.R.B. 52 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52
Coventry Health Continuum d/b/a Coventry Health
Center and Teamsters Local Union No. 64, a/w
International Brotherhood of Teamsters, AFL–
CIO. Case 1–RC–20761
September 14, 2000
DECISION ON REVIEW AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On March 19, 1998, the Acting Regional Director for
Region 1 issued a Decision and Direction of Election in
the above-entitled proceeding, in which the Petitioner
seeks to represent a unit of all registered nurses (RNs)
employed by the Employer at its 344–bed nursing home.
The Employer objected to the inclusion in the unit of
RNs who work as charge nurses, asserting that they are
supervisors within the meaning of Section 2(11) of the
Act as they evaluate and discipline the Employer’s certi-
fied nursing assistants (CNAs), assign and direct their
work, and adjust their grievances. The Acting Regional
Director found that the RN charge nurses are statutory
supervisors solely on the basis of their authority to per-
form probationary evaluations of newly hired CNAs and
their role in the annual merit raise evaluations of all
CNAs.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Petitioner filed a timely request for review of the Act-
ing Regional Director’s decision, contending that he had
erred in finding that the Employer’s RN charge nurses
are statutory supervisors. By Order dated May 8, 1998,
the Board granted the Petitioner’s request for review.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
After careful consideration of the entire record in this
case, including the Employer’s brief on review, the
Board concludes, contrary to the Acting Regional Direc-
tor, that the RN charge nurses’ role in the Employer’s
evaluation procedure does not establish that they are su-
pervisors within the meaning of Section 2(11) of the Act.
I. FACTS
A. Probationary Evaluations
As the Acting Regional Director found, the RN charge
nurses evaluate the CNAs three times during their proba-
tionary period—after 30, 60, and 90 days of employ-
ment—and annually thereafter. On the probationary
evaluations, each aide is given a numerical score in sev-
eral categories, including: quality, productivity, job
knowledge, dependability, independence, initiative, ad-
herence to policy, interpersonal relations, judgment, and
attendance.2 The form does not provide a space for rec-
ommendations; however, the charge nurses may add
comments and/or make recommendations based on par-
ticular concerns they have regarding the aide who is be-
ing evaluated. The charge nurses also may speak directly
to the director for nursing services, Carol Pelltier, or to
the in-service director about the aide.

1 The Employer also filed a request for review which the Board de-
nied in its May 8, 1998 Order, contending, inter alia, that its in-service
coordinator and MDS coordinators were managerial employees.
Janet Cornell, the Employer’s assistant director for
nursing services, testified that Pelltier reviews the
evaluation and the scores given by the charge nurse to
determine whether the aide has completed the probation-
ary period successfully. Cornell also stated that a charge
nurse’s recommendation that a CNA needs further train-
ing would result in the aide’s probationary period being
extended, and that there would be a delay in the (unspeci-
fied) wage increase which generally is awarded at the
end of a successful probation. The record, however, does
not contain any examples of an aide’s probationary pe-
riod having been extended or indicate that any aide’s
employment has been terminated after the probationary
period.
B. Annual Evaluations
In July 1997, the Employer instituted a new evaluation
system under which all employees are evaluated each
July, and the numerical scores received on these per-
formance appraisals directly correlate to specific merit
increases.3 All aides whose employment commenced
prior to July 1, 1996, were given hourly merit increases
based on the following performance evaluation scores:
90–100 = 50 cents; 90–95 = 40 cents; 86–69 = 25 cents;
80–85 = 20 cents; 76–79 = 15 cents; 70–75 = 10 cents;
and below 70 = no increase. Another .5 to 1.5 cents was
awarded each employee, based on seniority.4
Cornell, who was an RN nursing supervisor at the time
the Employer instituted its new evaluation system, testi-
fied that the evaluations first were filled out by the RN
nursing supervisors (stipulated to be statutory supervi-
sors). She stated that she then gave the evaluations to the
charge nurses working with her to go over, and asked
them to make any changes they saw fit and to add any
comments that they “needed to.” After a number of
evaluations had been completed, concerns about the new
2 The scores range from 1 to 100 (100–90 = excellent; 89–80 =
above average; 79–70 = satisfactory; 69–60 = improvement needed;
below 60 = unsatisfactory).
3 Prior to that time, all employees were evaluated annually on the
anniversary of their hire, and the evaluations were not tied to merit
increases.
4 The Emp. Exh. 12 is an (undated) memorandum describing the in-
creases. Testimony indicated that it was given to the charge nurses
before the evaluations were completed, and then apparently, sent to all
employees.
332 NLRB No. 13
COVENTRY HEALTH CENTER 53
evaluations were discussed at a meeting of department
heads. As a result, according to Cornell, a new form was
created,5 and the nursing supervisors were told that the
RN charge nurses had to be part of the process, i.e., that
the charge nurses needed to evaluate their aides. Cornell
testified, however, that she again filled out the forms
first, then gave them to the charge nurses who “made
some significant changes” which she discussed with
them. Pelltier then reviewed the evaluations and told the
nursing supervisors to look at attendance records, as well
as counseling forms and commendations in the aide’s
personnel file, in order to complete the evaluations. Af-
ter doing this, Cornell asked her charge nurses to review
the evaluations and to make any changes they felt appro-
priate. The charge nurses suggested changes and dis-
cussed their suggestions with Cornell, before any scores
and/or comments were adjusted or amended. According
to Cornell, if the charge nurses disagreed with a certain
score, the aide would receive the score that the nurse
gave them as long as the charge nurse could “justify” or
substantiate her comments.
Two RN charge nurses also testified regarding the an-
nual evaluations. Sandra Meagher stated that the first
time the new merit evaluations were done, her nursing
supervisor filled out the forms and then called her in to
discuss them. She testified that she agreed with what the
nursing supervisor had written. When the evaluation
forms were completed the second time, Meagher noted
that she did not see the evaluations before they went to
Pelltier. Alternate charge nurse Brenda Verville testified
that the regular charge nurse completed the first set of
evaluations which were “brought back” to be redone. At
that point the nursing supervisor took over the evalua-
tions, “involved” the regular charge nurse, then Verville
and an LPN charge nurse were asked to look over each
one and to initial the form if they agreed with the evalua-
tion.
II. ANALYSIS
Section 2(3) of the Act excludes “any individual em-
ployed as a supervisor from the definition of ‘em-
ployee.”’ Section 2(11) of the Act defines ‘supervisor’
as:

any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of

5 The form currently used is the same form that is used for proba-
tionary evaluations.
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.

Section 2(11) is to be read in the disjunctive, and the
“possession of any one of the authorities listed in [that
section] places the employee invested with this authority
in the supervisory class.” Ohio Power Co. v. NLRB, 176
F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899
(1949). The exercise of that authority, however, must
involve the use of independent judgment. Provident
Nursing Home, 187 F.3d 133 (1st Cir. 1999), enfg. 324
NLRB No. 46 (1997); Telemundo de Puerto Rico, 113
F.3d 270, 273 (1st Cir. 1997). Further, the burden of
proving supervisory status is on the party alleging that
such status exists. Bozeman Deaconess Hospital, 322
NLRB 1107, 1108 fn. 4 (1997).
As we recently stated in Elmhurst Extended Care Fa-
cilities, 329 NLRB 535 (1999), Section 2(11) does not
include the authority to “evaluate” in its enumeration of
supervisory functions. Thus, when an evaluation does
not, by itself, affect the wages and/or job status of the
employee being evaluated, the individual performing
such an evaluation will not be found to be performing a
statutory supervisory function.6 As we explain below,
we find that on this record, the Employer has not met its
burden of establishing that the charge nurses perform a
statutory supervisory function in evaluating employees.
A. Probationary Evaluations
The Acting Regional Director concluded that the Em-
ployer’s charge nurses are supervisors, in part, because
their “authority to perform probationary evaluations of
newly hired CNAs constitutes the power to effectively
recommend continued employment and a raise.” Con-
trary to the Acting Regional Director, we find that the
role of the charge nurses in the Employer’s evaluation of
CNAs after 30, 60, and 90 days of their hire does not
establish that the charge nurses possess statutory supervi-
sory authority.
Thus, although the charge nurses are asked to evaluate
the new CNAs 3 times during the first 3 months of their
employment, there is no evidence that this involves any
more than the more experienced employee, i.e., the
charge nurse, assessing (or expressing an opinion as to)
the aide’s knowledge of the requirements of the job; the
quality and productivity of the aide’s work; the depend-
ability or degree to which an aide can be relied upon to
complete a job; the aide’s initiative in seeking out new
assignments and in assuming new responsibilities; the
aide’s independence in performing his or her work; and
6 See also, Ten Broeck Commons, 320 NLRB 806, 813 (1996);
Northcrest Nursing Home, 313 NLRB 491, 498 at fns. 36 & 37 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54
the degree to which the aide follows the Employer’s
rules, including attendance. When a charge nurse nu-
merically rates a probationary employee in these various
categories, she is “doing so in a manner similar to that of
the more experienced employee who conducts tests and
grades the skills of new hires against recognized stan-
dards or guidelines.” Elmhurst Extended Care, supra, at
536, fn. 8. As we stated in Elmurst:

. . . we do not question whether the [charge nurses] ex-
ercise independent judgment in filling out the evalua-
tions. We assume, arguendo, that the nurses use some
professional or technical judgment based on their
greater skills and expertise during the evaluation proc-
ess. Whether the use of such judgment is supervisory
independent judgment is, of course, a different ques-
tion. But the essential question here is whether the
nurses effectively recommend a reward or other per-
sonnel action concerning other employees. Since the
answer to this question is that they do not, they are not
statutory supervisors.7

In this case, as in Elmhurst, the essential question is
whether the nurses effectively recommend a reward or
other personnel action concerning other employees.
Since the answer to this question is that they do not, they
are not statutory supervisors. In fact, there is not even a
space for recommendations on the evaluation forms, and
there is no evidence that any probationary employee has
been terminated or that any aide’s probationary period
has been extended as a result of the 30, 60, and 90–day
evaluations. See Harborside Healthcare, 330 NLRB
1334 (2000).8 Further, there is no indication that the
(unspecified) wage increase all probationary employees
receive at the end of this period is based on any numeri-
cal score given on those evaluations. Rather, it is auto-
matically given on completion of probation. In these
circumstances, we find the charge nurses’ role in the
completion of probationary evaluations indistinguishable
from the role of the charge nurses in Elmhurst. Accord-
ingly, as the nurses do not effectively recommend a re-
ward or other personnel action concerning other employ-
ees, we conclude that the Acting Regional Director erred
in relying, in part, on this aspect of the charge nurses’

7 Id., 536 fn. 8 (citation omitted).
8 As in the instant case, the Board found that charge nurses were not
supervisors based on their role in evaluating nursing assistants where,
inter alia, there was no evidence that charge nurses had recommended
that the employment of any nursing assistant not be continued, or that
any employee had been terminated based on a charge nurse’s evalua-
tion. 329 NLRB 535, 536.
role in the evaluation process to conclude that they are
supervisors.9
B. ANNUAL EVALUATIONS
Similarly, we find that the RN charge nurses’ role in
the Employer’s annual evaluation process does not estab-
lish that they possess supervisory authority. The Acting
Regional Director found that the RN charge nurses per-
formed the annual performance appraisals jointly with
the RN supervisors, and that the amount of each aide’s
merit increase is directly related to his or her score on the
annual performance appraisal. Thus, he concluded that
the RN charge nurses’ role in these evaluations confers
supervisory status. Bayou Manor Health Center, 311
NLRB 955 (1993).
We find, however, that the record fails to support the
Acting Regional Director’s conclusion. Thus, contrary
to our dissenting colleague’s assertions, the Employer
has not met its burden of proving that its RN charge
nurses have completed annual evaluations under the new
system,10 or that their participation in the evaluation
process demonstrates the use of supervisory independent
judgment. The three witnesses who testified regarding
the Employer’s new annual evaluation system stated that
the RN nursing supervisors completed the evaluations
before showing them to the charge nurses. Janet Cornell
further stated that her charge nurses had to “justify” any
suggested changes in the scores and/or comments if they
disagreed with the ratings she already had given the em-
ployee. She did not elaborate on what she meant by “jus-
tify” or give any specific examples of cases where this
had occurred or even how many nurses she was referring
to in her generalization. On the other hand, the other two
witnesses clearly testified that their participation in the
evaluations was different from the description of the
process given by Cornell, and that their role in this proc-
ess was quite limited. Thus, as stated above, charge
nurse Verville testified that she had not been told that she
could suggest changes, and was only asked to sign or
initial the form if she agreed with what the nursing su-
pervisor had done. Charge nurse Meagher stated that,
although she was called in to “discuss” the evaluations
9 See also, Provident Nursing Home, supra; Health Care & Retire-
ment Corp. (Valley View Nursing Home), 310 NLRB 1002 (1993).
10 Our dissenting colleague relies, in part, on the fact that charge
nurses made “significant changes” in the RN supervisor’s initial rating
under the new evaluation system. However, the evaluations containing
those changes were “recalled” and the nursing supervisors were told to
redo them before they were given to the employees. Moreover, al-
though Cornell testified that she asked her charge nurses to review the
completed evaluations the second time around, of the two charge nurses
who testified, one stated that she did not have any input into the final
evaluations and the other stated that she merely was asked to initial the
completed form if she and an LPN charge nurse agreed with it.
COVENTRY HEALTH CENTER 55
the first time the nursing supervisor completed them, she
did not know that the first round of evaluations had been
rejected by the director for nursing services, and she was
never shown the evaluations when the supervisor filled
them out on the second round.11
In these circumstances, we cannot agree with the Act-
ing Regional Director that the evidence demonstrates that
the charge nurses perform the annual appraisals jointly
with the RN nursing supervisors. See Harborside
Healthcare, supra. There, the employer’s charge nurses
as well as its unit managers (uncontested statutory super-
visors) each prepared evaluations for the same nursing
assistants. However, there was no indication as to how
any conflict in the numerical ratings of the separate
evaluations would be dealt with by the director of nurs-
ing. Further, unit managers in some instances had re-
turned the charge nurses’ evaluations to them for revi-
sion, and thus the director of nursing may not have even
seen a charge nurse’s independent evaluation of the as-
sistant. The Board concluded that there was no evidence
that the evaluations presented to the director of nursing
were the product of the charge nurses’ independent
judgment, or that they reflected a collaborative effort
between equals. Slip op. at 2.
In the instant case, even though the record contains
several examples of merit evaluations signed solely by an
RN charge nurse, only one of them is dated, but the three
signed by an RN nursing supervisor clearly indicate
when the evaluations were completed. As the testimony
indicated, the director of nursing was dissatisfied with
the first set of evaluations completed under the new sys-
tem, and it is not possible to tell from the undated forms
at what point in the process they were filled in or
whether they were final evaluations. Although Cornell
identified the signature on each of the forms as they were
entered into the record, there was no other testimony
regarding these evaluations. Thus, the Employer has
failed to show that these evaluations are reliable evidence
of supervisory status. Accordingly, we conclude that the
charge nurses’ participation in the annual evaluations of
the CNAs fails to establish that the charge nurses possess
supervisory authority as contemplated by Section 2(11)
of the Act. See Harborside Healthcare, supra; Provident
Nursing Home, supra. Cf., Cape Cod Nursing & Retire-
ment Home, 329 NLRB 233 (1999); Bayou Manor, su-
pra.

11 Contrary to our dissenting colleague, we find that this inconsis-
tency in the Employer’s evaluation process indicates a failure of proof
on the part of the Employer to establish that its RN charge nurses pos-
sess statutory authority.
ORDER
The Acting Regional Director’s exclusion of the RN
charge nurses from the unit found appropriate for collec-
tive bargaining is reversed. The case is remanded to the
Regional Director for further appropriate action consis-
tent with this Decision.

MEMBER HURTGEN, dissenting.
I agree with the Acting Regional Director that the
charge nurses are supervisors.
1. PROBATIONARY EVALUATIONS
The charge nurses evaluate CNAs three times during
their probationary period (after 30, 60, and 90 days of
employment). The charge nurse gives the CNA a nu-
merical score for each of several categories of perform-
ance. The scores are given to the Director of Nursing
Services. The Director then decides whether the CNA
has successfully completed the probationary period. If
so, the CNA is retained and is automatically given a
wage increase. If not, the probationary period is ex-
tended and a wage increase is not given.
Based on the above, the Regional Director found that a
charge nurse has the power “to effectively recommend
continued employment and a raise.” I would affirm the
finding. My colleagues respond by saying that the
charge nurse, when completing the evaluation, is simply
giving her “opinion” as an “experienced” person. How-
ever, that would seem to be the essence of an evaluation,
i.e. an experienced person gives an opinion about the
performance of an employee. Surely, that does not mean
that an evaluation has not occurred. Where, as here, that
evaluation is relied upon by the Director of Nursing Ser-
vices, and thus has employment consequences, the
evaluation is clearly an act of supervision.
My colleagues respond that the evaluation is not an ef-
fective recommendation concerning personnel actions. I
disagree. The Acting Regional Director found that the
charge nurses, through the evaluations, have the power to
effectively recommend “continued employment and a
raise.” As discussed above, that finding is amply sup-
ported by the evidence.1
I recognize that no probationary employee has been
terminated, and none has had the probationary period
extended. However, these facts are not determinative.
The relevant fact is that recommendations to retain and to
give an increase have been followed. And, the authority
to recommend contra nonetheless exists.
Finally, the fact that the word “recommended” does
not appear on the form cannot gainsay the reality of a
1 To the extent that this case is similar to Elmhurst Extended Care
Facilities, 329 NLRB 535 (1999), I agree with the dissenting opinion in
that case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56
recommendation. A numerical score is given and, unless
changed by the Director (no evidence that it has been),
the CNA will be retained and will be given a wage in-
crease.
2. ANNUAL EVALUATIONS
The performance of the CNAs is rated under a numeri-
cal system. The score translates into a specific increase
(90–100 = 50 cents; 90–95 = 40 cents, etc.). The RN
supervisor makes the initial rating. The RN supervisor
then gives the charge nurse the opportunity to make
changes. Indeed, the system was recently changed to
give the charge nurses an even greater opportunity to
make changes. As a result, charge nurses made “signifi-
cant changes” in the RN supervisor’s initial rating. Fur-
ther, if there is a disagreement between the charge nurse
and the RN supervisor, the charge nurse would prevail,
so long as she could justify her score. Thus, the charge
nurses’ role in the evaluation scores is at least as great, if
not greater, than that of the RN supervisor. And, since
the evaluations determine the amount of wage increases,
the charge nurse clearly exercises supervisory authority.
As noted above, the charge nurse reviews the evalua-
tion prepared by admitted supervisors. And yet, my col-
leagues contend that the charge nurse is not a supervisor.
In support of this oddity, my colleagues note that the
charge nurse has to “justify” any changes made in the
evaluation prepared by the supervisor. My colleagues
complain that there is no elaboration of the word “jus-
tify.” In my view, this contention misses the essential
point. The essential point is that the charge nurse can
modify the evaluations prepared by admitted supervi-
sors.2

2 In situations where the charge nurse changes the evaluation pre-
pared by the supervisors, the change goes back to the supervisor for her
to redo it, presumably in accord with the charge nurses’ change.